Excerpt:.....to the protest made by her to the accused soon before committing suicide to the effect that if rajinder kumar did not comply with the request of agreeing to return to the matrimonial home she would commit suicide and the accused having said that she could do what she liked as that would not affect them, it at best amounts to an omission on their part of not having tried to dissuade her from committing suicide. counsel appearing for the opposite side has failed to show any law that requires a person, whether a stranger or a close relation, to stop a stranger or a close relation from committing a crime. it was observed that although these persons did not directly instigate the widow, but by shouting 'sati-mata-ki-jai' applauded her decision and encouraged her to keep up her resolve,..........went back to her house and returned with a bucket of kerosene oil and again told rajinder kumar accused that if he would not accede to her request of returning to her she would burn herself. both of them are said to have told her that she could go ahead with her plan, the same would not affect their health, sita devi then and there sprinkled kerosene oil upon her body and with matchstick set herself on fire right in front of the shop of raj kumar accused. neither of the accused is said to have made any effort to save her by extinguishing fire or removing her to the hospital for medical aid. it was sonan lal p. w. 5 who happened to be present there who removed her to civil hospital, ludhiana. dr. tarlok nath p. w. 1 who had admitted the deceased in the hospital at 9.45 a.m. sent.....

Judgment:

D.S. Tewatia, J.

1. Raj Kumar appellant in Criminal Appeal No. 158-SB of 1980 and Rajinder Kumar appellant in Criminal Appeal No. 183-SB of 1980 were tried together for the offence of abetment of suicide by Smt. Sita Devi wife of Rajinder Kumar appellant. They were both found guilty of the charge and were convicted and sentenced to rigorous imprisonment for three years and to a fine of Rs. 200/- and in default of payment thereof to further rigorous imprisonment for four months each under Section 306, I. P. C, They have challenged their conviction and sentence through aforesaid two separate appeals.

2. These appeals being disposable by a single Judge in the first instance were laid before me. Considering the importance of the legal question particularly when viewed in the context of emerging scenario of what has come to be known in the daily press as 'dowry deaths', the decision of these appeals was referred to a larger Bench. That is how these appeals are before us which we propose to dispose of by a common judgment.

3. The prosecution case briefly put is that Sita Devi, married to Rajinder Kumar some five years prior to the occurrence had a son from him, who on the date of occurrence was about six months old, It appears that Rajinder Kumar appellant and his wife had stopped seeing eye to eye with each other with the result that for the last 22 days, prior to the occurrence, he had stopped returning to his house. He was employed, at the shop of Raj Kumar appellant. Sita Devi held Raj Kumar to be responsible for the discord between her and her husband and for the abnormal conduct of Rajinder Kumar of absenting from home. Her efforts of persuading Rajinder Kumar to come back to her appear to bear no fruit. At about 8A.M. on the date of occurrence, Sita Devi deceased came to the shop of Raj Kumar to make a final bid, at persuading Rajinder Kumar to resume normal visit to the matrimonial home. He, however, told, her off saying that he would not come to house and would ill treat her. Sita Devi thereafter went back to her house and returned with a bucket of kerosene oil and again told Rajinder Kumar accused that if he would not accede to her request of returning to her she would burn herself. Both of them are said to have told her that she could go ahead with her plan, the same would not affect their health, Sita Devi then and there sprinkled kerosene oil upon her body and with matchstick set herself on fire right in front of the shop of Raj Kumar accused. Neither of the accused is said to have made any effort to save her by extinguishing fire or removing her to the hospital for medical aid. It was Sonan Lal P. W. 5 who happened to be present there who removed her to Civil Hospital, Ludhiana. Dr. Tarlok Nath P. W. 1 who had admitted the deceased in the hospital at 9.45 A.M. sent ruqa to the police A. S. I. Jai Singh P. W. 7 who on receiving the telephonic message reached the hospital and at 11.10 A. M. recorded the statement of the deceased in the presence and hearing of Dr. Suresh Kumar P. W. 3, on being certified by the latter that she was in a fit condition to make the statement. On the basis of the said statement, the case was registered against the two accused. Sita Devi died on the same day at 3.05 P. M.

4. Prosecution case rests besides the statement of the deceased, which as a result of her death has assumed the status of a dying declaration, on the testimony of Sohan Lal P. W. 5 who had witnessed the conversation that took place between the deceased and the accused before she sprinkled oil upon her body and committed suicide, Sukhdev Singh P. W. G who had witnessed the deceased asking Rajinder Kumar to resume his visits to the house and telling him that if he did not then she would commit suicide and both the accused having told her that she could die any time and that would not affect them. When he tried to intervene, he was told by the accused, to mind his own business, at this he is said to have left the scene of occurrence; P.W. 4 Rohat Kumar, real brother of Raj Kumar, who has stated that deceased was his mother's sister; that the deceased had told him that Rajinder Kumar used to quarrel with her; that he had asked her to bring Rs. 5,000/- from her brother and she having replied that her brother was a poor man and that she could not bring Rs. 5,000/-. He also deposed to the fact that on coming to know that the deceased had tried to commit suicide and had been removed to hospital, he went to the hospital where in his presence her dying declaration was recorded by A.S.I. Jai Singh P. W. 7; Jai Singh P. W. 7 who deposed to his having received the telephonic message and having recorded the dying declaration of the deceased after she had been certified to be fit to make a statement by Dr. Suresh Kumar; and the medical testimony comprising of the statement of Dr. Tarlok Nath P. W. 1; Dr. P. K. Aggarwal P. W. 2 and Dr. Suresh Kumar P. W. 3. Dr, Tarlok Nath P. W. 1 stated to his having admitted the deceased in the hospital and having' sent information to the police in that regard. Dr. P. K. Aggarwal P. W. 2 deposed to his having conducted the postmortem on the dead body of Sita Devi and had opined shock resulting from extensive burns as the cause of death. Dr. Suresh Kumar P. W. 3 stated that, he had opined that the deceased was in a fit condition to make a statement and that her statement was recorded by A.S.I. Jai Singh P. W. 7 in his presence.

5. Rajinder Kumar when examined under Section 313, Cr. P.C. denied the prosecution allegations and pleaded false implication on account of the pressure exerted by social workers and the police being afraid of them. Raj Kumar too denied the prosecution allegations and pleaded that his father Jai Gopal who had turned him out Of his house and debarred him from the business had got him falsely implicated in that case; that Rohat Kumar P. W. 4 his real brother who was residing with his father Jai Gopal had become instrumental in getting him falsely implicated,

6. Mr. Harbans Singh, counsel for Rajinder Kumar, and, Mr. H. L. Sibal, counsel for Raj Kumar, have canvassed before us that the evidence on the record even if accepted, at its face value, makes out no offence against either of the appellants. It has been argued on behalf of the appellants that the requisite ingredients of offence of abetment as defined in Section 107, I.P.C. have not been established against them by the prosecution. Elaborating the submission, it has been stressed that the appellants were neither guilty of instigation nor of aiding in the commission of the crime either by any act or by an illegal omission as envisaged by the provisions of Section 107, I, P. C.

7. There appears to be merit in the contention advanced on behalf of the appellants. Section 107, I.P.C. is in the following terms:

107. A person abets the doing of a thing who

First - Instigates any person to do that thing; or

Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.

8. Even if the evidence of the P.Ws. Sohan Lal and Sukhdev Singh is accepted at its face value, although it is an improvement upon the dying declaration on a most crucial and material point pertaining to the protest made by her to the accused soon before committing suicide to the effect that if Rajinder Kumar did not comply with the request of agreeing to return to the matrimonial home she would commit suicide and the accused having said that she could do what she liked as that would not affect them, it at best amounts to an omission on their part of not having tried to dissuade her from committing suicide. The question that arises for consideration is as to whether such omission on their part would satisfy the requirement of clause thirdly of Section 107. I.P.C. Clause thirdly envisages not a simple omission but an illegal omission. The omission would be illegal only if what has been omitted, to be done was required under the law to be done by such a person. Counsel appearing for the opposite side has failed to show any law that requires a person, whether a stranger or a close relation, to stop a stranger or a close relation from committing a crime. If it is to be otherwise, then, in our opinion, even most innocent persons would be found guilty of abetment of suicide and other offences if they were unable to comply even with the most unreasonable demand of their children or their spouse or of utter stranger made on the point of committing suicide.

9. In a bid to pursuade us to hold otherwise, the learned Counsel for the respondents cited to us Tejsingh v. The State ; Kinder Singh v. Emperor AIR 1933 All 160 : 34 Cri LJ 1069 and Ramdial v. Emperor AIR 1914 All 249 : 14 Cri LJ 634.

10. All the three aforementioned cases pertain to committing of Sati. Taking the last case first, in that case it was found as a fact that the accused, close relation of the Sati, although to begin with were against her committing Sati, even sent a Chaukidar to inform the police, but on the urging of the Sati they prepared the pyre on which the widow of the deceased sat, supplied to her ghee which she poured on her person and also poured some ghee themselves on her person. The fire was lit which consumed the deceased's husband and his widow. It was held therein that even if the accused were in the beginning against the committing of Sati but eventually had aided in the act of Sati by preparing the pyre and supplying ghee to the widow. In Inder Singh's case (supra) head of the family of the deceased was the leader of the party that had desired the woman to become Sati, although they ostensibly pretended that they were preventing the widow from burning herself. In Tejsingh's case (supra) some of the persons who had participated in the funeral procession, on the head of which proceeded the widow of the deceased, had all along the way shouted 'Sati-Mata-Ki-Jai' were found guilty of the offence. It was observed that although these persons did not directly instigate the widow, but by shouting 'Sati-Mata-Ki-Jai' applauded her decision and encouraged her to keep up her resolve, which amounted to instigation.

11. Apparently ratio of none of the aforementioned decisions is attracted to the facts of the present case. It has, however, been urged on behalf of the respondents that the accused by telling the deceased 'that she could do whatever she liked it did not affect them', instigated her to commit suicide.

12. Expression 'instigate' in the Concise Oxford Dictionary is defined as 'urge on, incite, bring about by persuasion and in Webster, it has been defined as 'urge forward, provoke with synonyms of stimulate, urge, spur, provide tempt, incite, impel, encourage, animate. The word 'instigate' in common parlance would mean to go, to urge forward or to provoke, incite or encourage to do an act.

13. The retort made by the accused when the deceased threatened to commit suicide if Rajinder Kumar did not agree to her request, did not amount to instigation by any stretch of imagination, If such a retort is accepted to be constituting instigation, then, to cite only one example, the parents would be guilty of abetment of suicide if even when most unreasonable demand is made by their child, which they are not in a position to comply with, on the threat of committing suicide and they were t0 retort that the child could do so as they were not in a position to agree to his/her request. The framers of the Code surely could never have intended this to happen.

14. For the reasons aforementioned, we hold that the statements of the witnesses and the dying declaration even when taken at its face value do not attract the provisions of Section 306 read with Section 107, I.P.C.

15. In view of the above conclusion, we consider unnecessary to embark upon & further appreciation of the evidence on record in regard to its weight and probity.

16. For the reasons aforementioned, we hold that the appellants had committed no offence. The appeals are allowed and their conviction and sentence are quashed.